1839. DoE dem. GATACRE. Wiseman v. Crow (a), view to the present question. In the mean time several cases had occurred in which the statute was not adverted to, but a recovery was said to be a forfeiture of the particular estate; as Plunket v. Holmes (i), Loddington v. Kime (k), Carter v. Barnardiston (1), Barnardiston v. Carter. (m) Plunket v. Holmes furnishes no authority; for the recovery in that case operated as a merger of the particular estate, and, therefore, as a destruction of the contingent remainder. In Carter v. Barnardiston the Master of the Rolls considered that the fee was in nubibus, or in gremio legis, which shews how little the subject was then considered; and though in Barnardiston v. Carter, in Dom. Proc., the Judges decided that the remainder in question was contingent, they avoided answering the question whether or not it was barred: Loddington v. Kime, therefore, is the chief authority on which it has since become a received opinion that a recovery bars a contingent remainder. But in that case the statute was not noticed, and it has been followed by others to the (a) Cro. Eliz. 562. (e) 1 Sid. 90. (g) 1 T. R. 741. (h) 3 Taunt. 373. (i) 1 Lev. 11. (k) Salk.224. 1 Ld. Raymd. 203. 3 Lev. 431. () 1 P. Wms. 505. same effect, in which likewise the point has been taken for granted, without reference to the statute; as Doe v. Holmes (a), Doe dem. Gilman v. Elvey (b), Goodright v. Dunham (c), and Goodtitle v. Billington (d); all of which, as well as Plunket v. Holmes, were cases of merger, and not of forfeiture. In Doe dem. Herbert Others v. Selby (e), a more formidable authority, the recovery was considered to effect the destruction of the contingent remainder, and the particular estate was not determined by merger: but in Roe dem. Clemett v. Briggs (g) it was held that the recovery gave a new estate, and so affected the remainder. It cannot be denied that there has been a very general opinion that such a recovery bars contingent remainders. But in Preston's Conveyancing, p. 111., it is said that the subject ought to be reconsidered. If the Court should be of opinion that the recovery operated as a forfeiture of John Phillips's life estate, at least it was a forfeiture of the second class, above distinguished,by acknowledgment of an adverse title,by which no remainder was displaced till entry, and as no such entry was made, the lessor of the Plaintiff is entitled to recover; Lloyd v. Brooking (h), Fearne Cont. Rem. 313. 323. Ludlow Serjt., Whateley, and Gray, for the Defendant, relied on the series of authorities in which it has been laid down, that a recovery had against the particular tenant destroys all contingent remainders; and in addition to those mentioned in the argument for the Plaintiff, cited, Sheppard's Epitome, 830.; Sheppard's Touchstone, 40. 44. 48.; Pigott on Recoveries, 84. 92. 94. Co. Litt. 1839. Doɛ dem. บ. GATAORE. 1839. DoE dem. v. GATACRE, 356. a. 361. b. Wood's Instit. 264.; 1 Cruise, Dig. 94.; 5 Cruise, Dig. 474. Com. Dig. Recov. B. 2.; 2 Bl. Com. 361. 274. Bac. Abr. Remainders and Reversions, G. Fearn Cont. Rem. 281.; 2 Wms. Saund. 42. m. Denn dem. Webb v. Puckey (a), Doe dem. Phipps v. Lord Mulgrave (b), Herring v. Brown (c), 1 Wms. Saund. 319.; 2 Wms. Saund. 386. Purefoy v. Rogers, Clerke v. Py well (d), Doe dem Davy v. Burnsall. (e) They contended also that the statute 14 Eliz. c. 8. did not apply to the case of contingent remainders: it was intended to benefit those who at the time of the recovery were in a position to take the estate, and did not propose to alter the rule of law which has established, that a contingent remainder which does not vest when the particular estate is determined can never vest at all. The effect of the statute was, not to prevent the forfeiture of the estate of the tenant for life, but to let in the next in remainder where there is a person capable of taking: that can only be where the remainder is vested, unless there are trustees to preserve contingent remainders. TINDAL C.J. The question which has been argued before us and very learnedly argued on both sides— is, whether the common recovery which was suffered by John Phillips in 1758, -John Phillips at that time being a bare tenant for life, did or did not bar the contingent remainders which were subsequent to his estate for life. The estate was limited to J. Phillips for life, with remainder to his first and other sons, in tail male. It is immaterial to consider the subsequent vested remainders, for the only point that has been brought before us in argument is, whether the contingent remainders that were subsequent to the estate of J. Phillips were or were not destroyed by this common recovery. 1839. DoE dem. V. GATACRE. Now it is an admitted principle, admitted by the counsel who argued this case for the lessor of the Plaintiff, with a great deal of investigation, upon the universal authority of text writers, and also all the autho-tv. Blöffe rities in the books from the time of Pelham's case, downwards, that if a tenant for life suffer a common recovery, the contingent remainders which are subsequent to such tenancy for life are barred, barred upon the ground that the tenant for life has, either by his alienation of a greater estate than he was entitled to, committed a forfeiture, or, that he has, by allowing himself to be vouched over to the warranty, and coming in and then assenting to it, warranting a greater estate than that to which he was entitled, violated the faith upon which the estate was granted to him, and the forfeiture is complete. And the immediate consequence follows, that the contingent remainders were not vested during the continuance of the particular estate of the tenant for life, and therefore fall to the ground, and never can be revived. But it is said, on the part of Plaintiff in this case, . that in the course of those authorities which have been before the different courts, the effect of the statute of of 14 Eliz. c. 8. has never been sufficiently adverted to; for inasmuch as a portion of the statute declares that "if a tenant for life suffer a common recovery, as against the remainder-men and reversioners, it shall be null and void, and of no effect whatever," it must have that consequence, and having no effect whatever it is no forfeiture, but the subsequent estates remained as they were before. In the first place one can hardly conceive that the 1839. DoE dem. บ. GATACRE. effect of this statute should not have come under the consideration of the courts in the various decisions that have taken place. I will only mention two of them; which were brought to our notice by the counsel for the Plaintiff, the one that of Plunkett v. Holmes, and the other Carter v. Barnadiston, in which latter the question was put to all the Judges. In the case of Plunkett v. Holmes, which was cited to us from Gilbert's Treatise on Uses, 302., the Court say, "Since it was a contingent remainder to Thomas, the recovery destroyed the particular estate, and by consequence, the contingent remainder:" that was in the time of Levinz And then we come to Carter v. Barnadiston, where the question was put most pointedly to the Judges, "whe ther the remainder to Sir T. Barnadiston was of that nature to be barred by the recovery," calling therefore their attention, pointedly and distinctly, to the difference between a vested remainder, and a contingent remainder, the recovery having been suffered by a party who was a bare tenant for life. In answer to that, the Chief Justice of the Common Pleas delivered the joint opinion of the Judges, "that the same was only a contingent remainder;" by that one answer in effect giving an answer to the two questions, which were involved in it, that it was destroyed, and that it was destroyed inasmuch as it was a contingent remainder. I can hardly therefore conceive that after 'such a continued concurrence of opinion from such an early period, down even to the late case of Doe v. Selby, a point of this sort should not have been agitated in Westminster Hall, because it is to be assumed that all our predecessors were almost blind to the statute of Elizabeth, which could not fail to be brought in view before them if it had this effect. But let us look to the statute itself, and see whether, upon the words of the statute, it can have the operation of preserving, as it is contended to do, the |